JUDGMENT M.C. Agarwal, J.
1. By this petition under Article 226 of the Constitution of India, the petitioner workman challenges an award dated 10-8-1994 made by the Labour Court-I, U. P., Ghaziabad in Adjudication Case No, 431 of 1993 whereby it held the termination of his services to be invalid being in violation of Section 16-N of the Industrial Disputes Act and ordered his reinstatement but without back wages. The Labour Court has directed that for the period the workman remained absent from duty he be treated to be on leave for the period leave is due to him and for the rest he be treated as on leave without pay. It is this part of the award that is challenged by the workman in this petition.
2. I have heard Sri K. P. Agarwal, Senior Advocate, counsel for the petitioner on admission.
3. The employer respondent is M/s. Indian Drugs & Pharmaceuticals Ltd., Rishikesh, a Government of India undertaking. The petitioner Hashmat Ali was employed as a foreman. He was granted leave for the period 20-5-1983 to 30-6-1983 for the purpose inter alia of a Haj Pilgrimage to Arabia. He did not report for duty en the expiration of leave. Instead he sought extensions upto 31-7-1983, then upto 31-10-1983 and then upto 30-11-1983. The extensions were not granted and by letter dated 2-12-1983 the management terminated his services with effect from 30-6-1983. On 9-12-1987 he moved an application before the Conciliation Officer making a grievance thereof but he did not pursue the same and application was dismissed ex parte. He then got the alleged industrial dispute referred to the Labour Court. The reference made by order dated 23-5-1990 resulting in the aforesaid award.
4. It is contended by Sri Agarwal that when the Labour Court found the termination to be illegal and ordered reinstatement then as per normal rule it should have awarded him full back wages. Reliance is placed inter alia on Hindustan Tin Works Pvt. Ltd. v. The Employees of Hindustan Tin Works Pvt. Ltd., AIR 1979 SC 75. That was a case in which 43 workmen were retrenched and the retrenchment was found to be invalid The Hon'ble Supreme Court while dealing with the question whether the workmen were entitled to full back wages observed as under:-
"9. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damage does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying, if after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz., to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U. P. Industrial Disputes Act, 1947, the State has endeavoured to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid ; the workmen though wilding to do the assigned work and earn their livelihood, were kept away therefrom On top of it they were forced to litigation upto the apex Court and now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them."
5. A careful reading of this judgment would show that the Hon'ble Supreme Court has emphasised that this is the normal rule and net that this is the only rule. That was a case in which the workmen were willing to work and were illegally retrenched. The present is a case, as would be shown hereafter, where the workman was not willing to work and was guilty of gross misconduct in overstaying leave and the management bona fide terminated his services which has been found to suffer from a technical legal lacunae, While, as emphasised by the Hon'ble Supreme Court, it is necessary that no premium should be put on the illegal labour practice of an employer, in my view it is equally necessary that a workman is not allowed any premium for his misconduct simply because the action taken by the employer is not strictly in accordance with law. No work, no pay is the normal rule and where an employee is himself responsible for his unemployment back wages can justifiably be refused to him.
6. In the present ease admittedly the petitioner was on his own request granted leave from 20-5-1983 to 30-6-1983 for undertaking Haj Pilgrimage and meeting relatives in Arab Countries. He did not report for duty on the expiry of leave. While for some time he sent applications for extension of leave, later he went totally underground. In his written statement before the Labour Court or in the present writ petition he did not disclose when he returned to India and asked the employer to take him back in service. He did not deny the receipt of letter of termination dated 2-12-1983 but that did not stir him. The employer in its written statement before the Labour Court averred as under :-
"4. The employee vide his application dated 14-3-1983 applied for leave from 4-4-1983 to 21-5 1983 on the ground that he was going to visit his relations in Saudi Arabia and is also to go for pilgrimage. This leave was sanctioned as Earned Leave. He however, did not avail this leave and moved another application on 19-4-1983 for grant of leave from 9-5-1983 to 25-6-1983. This leave was also sanctioned and he again did not avail the same and moved another revised application on 12-5-1983 for grant of leave from 20-5-1983 to 30-6-1983. This leave application was moved on the same ground as earlier leave application and was, therefore, sanctioned as Earned Leave. The employee this time proceeded on leave on 20-5-1983."
"5. That the employee was to report to duty on 1-7-1983. He, however sent an application dated 16-6-1983, applying for leave from 1-7-1983 to 31-7-1983. It will be interesting to observe here that the leave application was received on the I.D.P.L. printed form of application which could not have been available to the employee at Saudi Arabia. The printed form of application was also accompanied with another application for the same purpose on a piece of ruled paper. The reasons mentioned for extension of leave were disclosed as "unavoidable circumstances" which were absolutely vague. The leave applied for was not sanctioned."
"6. That the employee further applied for leave vide his application dated 16-7-1983 for grant of leave from 1-8-1983 to 31-10-1983. This application was also received on the printed form of IDPL, accompanied with a similar application on a piece of rule paper, as stated above. The reason for extension of leave was the same as in the leave application dated 16-6-1983 i.e., "unavoidable circumstances."
"7. That the management, in the meanwhile, gathered information from reliable source that the employee had sought employment in the Saudi Arabia and was, therefore, not interested in coming back to India. The fact and circumstances of the case created reasonable doubt in the mind of the management that the employee was net interested in the employment of the Company. In any event, the leave having been applied for on vague grounds, was rejected and a cablegram was sent on 13-10-1983 to the employee informing him that the leave applied for by him was not sanctioned and he should resume his duties immediately On the same date, another communication was also sent to the employes by registered airmail letter whereby he was informed that due to exigencies of work, specially when he was working in the supervisory capacity, the leave could not be sanctioned and that he should report for duty within 10 days of the receipt thereof. He was further informed that in case he did net report for duty immediately it was to be presumed that he was not interested in the services of the company any more and would be deemed to have left the same of his own accord."
"8. That the employee vide his letter dated 17-10 1983 sent to the management, in response to the aforesaid cablegram, informed that he cannot join his duties and desired further leave to be granted from 1-11-1983 to 31-1-1984. In this letter also he did not disclose the alleged "unavoidable circumstances", which were forcing him to stay on in Saudi Arabia and precluded him from reporting for duty. Subsequently, another letter dated 3-11-1983 was received from the employee wherein he informed that he was sick and being worried on that account, he was not in a position to resume his duties. He sought extension of leave upto 1-1-1984, on that ground. He enclosed a medical certificate along with this letter from one Dr. Abdul Ghafoor Siddiqui which stated that he was under his treatment w. e. f. 16-10-1983. The Doctor advised him rest and treatment for two months w.e.f. 2-11-1983. It is worth observing here that if the employee was under treatment of the said Doctor from 16-10-1983, there was no reason for him to mention about his illness in his letter dated 17-10-1983. It was obvious that the employee was becoming wiser day by day and tried to obtain leave on one pretext or the other.
"9. That the management could not have afforded to wait for the employee to report for duty for such an unduly long period. His conduct and the facts and circumstances of the case clearly spoke against him and were indicative of lack of interest of the employee in the employment of the company. To the management, the application for leave upto 31-1-1984 clearly appeared to be on the false ground and tended to confirm the belief that the employee was engaged in some lucrative job in Saudi Arabia and had no intention to serve the Company."
"10. That accordingly, the management vide their registered/ airmail letter dated 2nd December, 1983, informed him that they had waited long enough for him to resume his duties, which he failed to do and, therefore, they had no alternative except to treat him as having left the service of his own accord.
7. In his rejoinder affidavit, copy of which is Annexure '6' to the writ petition, the petitioner does not show any justification whatsoever for over staying leave. Though he says that along with his application dated 3-11-1983 he sent a medical certificate, but did not say that he was ill at all. To emphasise it may be repeated that the workman did not assign any cause for returning and joining duties. In my view it was a case of abandonment of employment by the workman and the Labour Court has not adverted to this aspect of the matter though pleaded by the employer. As a matter of fact this was not a fit case even for ordering reinstatement.
8. A labour dispute cannot be made a source of unjust enrichment. An employer cannot be burdened with back wages for such a long time when the default of the employee is much more serious than that of the employer and the workman is guilty of latches. Award of reinstatement and back wages in such cases would encourage indiscipline amongst workmen which has to be discouraged the same way as unfair labour practice of the employer.
9. For the reasons stated above I find no illegality in the Labour Court not awarding back wages to the petitioner. The writ petition has no force and is dismissed in limine.